Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvania. She is also the founder, CEO, and Academic Director of CHILD USA, a 501(c)(3) nonprofit academic think tank at the University of Pennsylvania dedicated to interdisciplinary, evidence-based research to prevent child abuse and neglect. Before moving to the University of Pennsylvania, Professor Hamilton was the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University.

Hamilton is the leading expert on child sex abuse statutes of limitations and has submitted testimony and advised legislators in every state where significant reform has occurred. She is the author of Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press), which advocates for the elimination of child sex abuse statutes of limitations. She has filed countless pro bono amicus briefs for the protection of children at the United States Supreme Court and the state supreme courts. Her textbook, Children and the Law, co-authored with Martin Gardner, will be published Fall 2017 by Carolina Academic Press, formerly Lexis/Nexis.

Hamilton has been a vocal and influential critic of extreme religious liberty, advocating for the vulnerable about overreaching. Hamilton successfully challenged the constitutionality of the Religious Freedom Restoration Act (“RFRA”) at the Supreme Court in Boerne v. Flores (1997), and defeated the RFRA claim brought by the Archdiocese of Milwaukee against hundreds of child sex abuse survivors in Committee of Unsecured Creditors v. Listecki (7th Cir. 2015). She has represented numerous cities dealing with church-state issues as well as claims brought under the Religious Land Use and Institutionalized Persons Act (“RLUIPA). The author of God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press), which was nominated for a Pulitzer Prize, she is also a columnist for Verdict on Justia.com.

Hamilton has been honored with the 2018 Pennsylvania State University Department of Philosophy Distinguished Alumni Award, the 2017 University of Pennsylvania Law School Louis H. Pollak Public Service Award, the 2016 Voice Today, Voice of Gratitude Award; the 2015 Religious Liberty Award, American Humanist Association; the 2014 Freethought Heroine Award; the National Crime Victim Bar Association’s Frank Carrington Champion of Civil Justice Award, 2012; the E. Nathaniel Gates Award for outstanding public advocacy and scholarship, 2008; and selected as a Pennsylvania Woman of the Year Award, 2012, among others. She is also frequently quoted in the national media on child abuse and neglect, statute of limitations, constitutional, RFRA, RLUIPA, and First Amendment issues.

Hamilton clerked for United States Supreme Court Justice Sandra Day O’Connor and Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit. Professor Hamilton is a graduate of Vanderbilt University, B.A., summa cum laude; Pennsylvania State University, M.A. (English, fiction writing, High Honors); M.A. (Philosophy); and the University of Pennsylvania School of Law, J.D., magna cum laude, where she served as Editor-in-Chief of the University of Pennsylvania Law Review. She is a member of Phi Beta Kappa and Order of the Coif.

Columns by Marci A. Hamilton

The U.S. Court of Appeals for the Ninth Circuit Strikes Down Proposition 8: Three Key Elements of the Decision

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Justia columnist and Cardozo law professor Marci Hamilton comments on several key aspects of the recent decision, by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, holding that Proposition 8—the initiative constitutional amendment purporting to abolish gay marriage in California—violates equal protection. Hamilton focuses, in particular, on (1) the standing issue and the problems the initiative procedure raised; (2) the question whether Prop. 8 had any legitimate purpose, or was simply driven by animus toward gay people; and (3) why the U.S. Supreme Court is unlikely to take the case.

New York City and State Consider Seeking to Reverse the Second Circuit’s Decision in the Bronx Household of Faith Case, Regarding Whether a Church Can Make a Public School Its House of Worship

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Justia columnist and Cardozo law professor Marci Hamilton comments on a New York church-and-state case in which the U.S. Supreme Court recently declined to grant review. As Hamilton explains, the case concerned a religious group, the Bronx Household of Faith, which sought to continue to use a public middle school on the weekends for Christian worship services, followed by a “fellowship meal”—without providing payment to the school, and while taking advantage of the free use of the school’s utilities. A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled, 2-1, against the Bronx Household of Faith, on the ground that the group did not have an “all comers” policy. Indeed, Hamilton notes, Bronx Household specifically excludes anyone who is not baptized, who is excommunicated, or who advocates the Islamic religion. Hamilton argues that both the Second Circuit panel’s decision and that of the U.S. Supreme Court were clearly correct as a matter of constitutional law. And yet, she notes, New York City and New York State are now hearing arguments to once again open the public schools to religious groups, including groups that lack “all comers” policies.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court Embraces a Narrow Ministerial Exception to Federal Anti-Discrimination Laws

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Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s decision this week in a case that pitted First Amendment religious freedom rights against the rights set forth in federal anti-discrimination law. In the case, a woman who worked for a church as a teacher was fired after taking a medical leave, and sought to invoke her rights under the Americans with Disabilities Act (ADA). But because she was a “called” teacher, with some religious responsibilities, the church argued that her firing was within its discretion, under the First Amendment’s religion clauses. The Supreme Court ultimately agreed, but as Hamilton explains, the Court issued a narrow decision that still leaves a host of related questions unanswered. Hamilton covers the “parade of horribles” that was raised, but that the Court declined to address in its decision. She also identifies the decision’s bottom line: Courts cannot constitutionally establish selection criteria for clergy.

2011’s Lessons on How We Can Better Protect Children From Sexual Abuse

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Justia columnist and Cardozo law professor Marci A. Hamilton comments on the disturbing developments, over the course of 2011, with respect to child sex abuse. From Penn State, to Syracuse, to The Citadel, Hamilton notes, scandals broke out after child sex abuse was credibly alleged. Hamilton suggests ten key lessons we can all take from these events. Among those lessons are that organizations typically cover up the abuse; that cover-ups tend to follow the same pattern; that just one person can make a huge difference by reporting abuse but too often, no one does; that child sex abuse sadly proves to be more prevalent than we would like to think; and that legal reforms can help in important ways. Hamilton also covers the stances of Governors Corbett and Cuomo on this issue.

The Sandusky Case: Secrecy and Silence Are a Child Predator’s Best Friends, but Other Events the Same Day Show That Soon Our Justice System Will Reveal the Truth

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Justia columnist and Cardozo law professor Marci Hamilton reports on the court proceedings that occurred this Tuesday, December 13, in the Jerry Sandusky child molestation case. Hamilton notes that Sandusky waived his right to a preliminary hearing, which would have allowed him to see some of the prosecution’s evidence against him. She explains, however, that Sandusky already had a great deal of notice as to the prosecution's evidence from the grand jury report that has been issued; and that, by choosing to waive his right to a preliminary hearing, Sandusky avoided having ten alleged victims get on the stand to tell their stories. Hamilton expresses regret that, in this way, the alleged victims were silenced once again. She also explains—based on a press conference at the courthouse, held by Sandusky's attorney—what the defense will claim: that the alleged victims are only in this for the money. But as Hamilton notes, that theory seems very weak, since none of the alleged victims has filed a civil suit. In addition, Hamilton covers a defamation case that is related to the allegations of sexual abuse by Syracuse men’s basketball coach Jim Boeheim’s longtime assistant, Bernie Fine, and the congressional hearings on sex-abuse reporting.

A Tale of Two States and Three Survivors: The Legal Obstacles Relating to Syracuse University’s Sex Abuse Scandal

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Justia columnist and Cardozo law professor Marci Hamilton comments on the obstacles to bringing prosecutions and civil suits based upon the alleged child sexual abuse by Syracuse associate head basketball coach Bernie Fine. Hamilton explains why the first two alleged victims who came forward may not receive justice due to the New York statute of limitations (SOL) that will govern their cases, and why the third alleged victim, who says he suffered abuse in Pennsylvania, will be subject to less draconian SOLs. Hamilton argues for SOL reform in these states and nationwide, and takes on the question of whether it should matter—or will matter—to judges and jurors that the third alleged victim who came forward in the Syracuse scandal is himself facing child sexual abuse charges. Hamilton points out, regarding this issue, that child sex abuse victims disproportionately become abusers themselves—suggesting that they deserve at least some sympathy, as their own childhood abuse is likely one causal factor in their own later abuse of children. She also calls for SOL standardization across the country, so that pedophiles can no longer choose to live in the locations with the most lenient laws (via federal incentives offered to states that opt for reform, and federal penalties for those that do not). In addition, Hamilton suggests that states create SOL “windows” to help past victims of child sexual abuse whose civil claims otherwise would be time-barred confront their accusers in court and find justice.

The Universal Need for the Mandatory Reporting of Child Sexual Abuse

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In the wake of the child sexual abuse scandals at Penn State and The Citadel’s camp, and within the Catholic Church and other religious institutions, Marci Hamilton suggests a better approach to the reporting and investigation of child sexual abuse claims. Hamilton argues that there should be a universal obligation to report abuse to a hotline, and that those who call the hotline in good faith, to report suspected abuse, should be legally immune to defamation claims. (False claims, however, would be penalized.) The hotline responders would then alert the appropriate agency or agencies. Hamilton also advocates strong failure-to-report penalties. She cautions, though, that a reporting obligation will not be enough; investigations must be improved too—noting that there was a 1998 report from a child’s mother about alleged Penn State abuser Jerry Sandusky, and yet, that investigation went off-track. Hamilton explains why that investigation was, and why similar investigations can be, ineffective, and she urges that investigators and others must keep in mind that empirically, children rarely lie about sexual abuse. Moreover, Hamilton notes that mandatory reporting will not only protect children, but also institutions that would otherwise have been destroyed by scandal, and now have the chance to take quick, decisive action against abusers.

The Penn State Scandal: Contrasting the School’s Approach With the Catholic Church’s Approach to Its Own Child Sex Abuse Scandal

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Justia columnist and Cardozo law professor Marci Hamilton contrasts the outcomes of the Catholic clergy child sex abuse scandal, and the recent Penn State child sex abuse scandal. Hamilton notes the two different outcomes: On one hand, the Boston Archdiocese’s Bernard Law, who enabled abuse by serial perpetrators, was embraced by the Holy See, and apparently will spend the rest of his life in Rome without ever having to answer for the crimes he permitted. On the other hand, Penn State’s Coach Joe Paterno and President Graham Spanier were held publicly accountable for their failure to report and address child sex abuse. What accounts for the difference? Hamilton contends that it is organizational structure: Penn State is a public institution, funded by Pennsylvania’s taxpayers; the Catholic Church is effectively a monarchy.

Last Week’s Congressional Hearing on Religious Liberty: A Disturbing Presentation by a Catholic Bishop Raises Questions About the Separation of Church and State

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Justia columnist and Cardozo law professor Marci Hamilton comments on a presentation given last week to a Subcommittee on the Constitution of the Judiciary Committee of the United States House of Representatives, by the Rev. William C. Lori, the Catholic Bishop of Bridgeport, CT, and the Chair of the United States Conference of Catholic Bishops’ newly-instituted “Ad Hoc Committee on Religious Liberty.” Hamilton argues that Lori’s remarks displayed insufficient respect for the Constitution’s separation of church and state. In particular, Hamilton discusses Lori’s remarks and the role of church/state separation as it relates to the availability of contraception and sterilization, and particularly the requirement that they be covered by private health insurance companies except insofar as certain employers’ religion forbids it. In addition, she discusses Lori’s position on government services relating to human-trafficking victims, which holds that religious service providers would not have to offer contraception and abortion—even to a trafficking victim who suffered a rape. In addition, Hamilton takes strong issue with Lori’s opposition to the federal government's decision to require that AIDS programs offer contraception (both condoms and other birth control) due to their proven efficacy in stopping the spread of disease. Hamilton acknowledges that, of course, religious institutions and institutions may act in these areas, but emphasizes that if they receive government funds, they must also follow government policy. Overall, Hamilton argues, the Church should focus on genuine religious liberty violations, and not issues like these.

Assessing Mitt Romney as a 2012 Presidential Candidate: Part Four in an Ongoing Series on the Likely Candidates and Their Views on Religion

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Justia columnist and Cardozo law professor Marci Hamilton continues her series on religion and the likely 2012 presidential candidates. This week, Hamilton considers Mitt Romney. To begin, Hamilton comments on Romney’s seeming unease about the history of polygamy of the Church of Jesus Christ of Latter-Day Saints (also known as the LDS Church), in which he has been a religious leader. Hamilton also compares Romney’s speech on how his religion would, and would not, affect his possible future presidency with the similar speech given by JFK regarding his Catholicism and his own possible future presidency—noting interesting differences in the stances taken by JFK and Romney, respectively. Hamilton also considers other aspects of Romney’s record—such as his questionable civil rights record, and certain instances where, she argues, he welcomed the exercise of federal power, even as he claimed to embrace states’ rights, such as when federal measures regarding same-sex marriage and federal healthcare money were at issue. In addition, she notes that Romney’s record on abortion is cryptic, and features some flip-flopping, leaving his true beliefs essentially unknown.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: The Supreme Court Oral Argument, and What It Revealed

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Justia columnist and Cardozo law professor Marci Hamilton comments on yesterday's Supreme Court oral argument, regarding religious institutions and anti-discrimination law. As Hamilton explains, the case brought the “ministerial exception” doctrine to the Supreme Court, for the first time ever. The doctrine, which stems from the First Amendment's Religion Clauses, holds that religious organizations have the right to determine the criteria for their own clergy (for instance, the Catholic Church need not hire female priests). The question the case raises is how to reconcile the ministerial exception with laws forbidding discriminatory hiring and firing. A related question is whether the teacher whom the Church fired, Cheryl Perich, was actually a minister, or simply a teacher of religion (as well as secular subjects). If she is a minister, the ministerial exception may apply; if not, she enjoys the full protection of the anti-discrimination laws. Finally, Hamilton notes that “sincerity” cases—allowing courts to gauge the sincerity of religious belief—might well have proven relevant here, but were not mentioned at oral argument.

Assessing Michele Bachmann as a 2012 Presidential Candidate: Part Three in an Ongoing Series on the Likely Candidates and Their Views on Religion

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Justia columnist and Cardozo law professor Marci Hamilton continues her ongoing series about the 2012 presidential candidates and their views on religion. In this column, Hamilton considers the views of Congresswoman Michele Bachmann. Hamilton contends that a Bachmann presidency would likely be dominated by evangelical Christianity, and notes that Bachmann sees the separation of church and state as “a myth” and would likely nominate to the federal judiciary only those who share her views. Moreover, Hamilton argues that Bachmann’s religious views would, if she were elected, also influence her foreign policy (which she has suggested would be automatically pro-Israel on religious grounds) and her policies on social issues such as abortion, stem-cell research, the HPV vaccine, and gay rights. Hamilton also notes that although Bachmann claims to support states’ rights, in practice she supports federal action if one of the policies that she herself favors is at issue.

The Tenth Anniversaries of 9/11 and of the Revelations of Catholic Bishops’ Cover-up of Child Sex Abuse: Two Developments That Profoundly Changed America

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Justia columnist and Cardozo law professor Marci Hamilton looks back to a more innocent time, ten years ago, before the 9/11 attacks shocked and horrified America, and before clergy child-sex-abuse scandals rocked first the Catholic Church and its believers, and then other religious institutions and believers as well. Hamilton contends that the key lessons of these devastating events are that we can never assume that a person’s belief in God, in itself, renders him or her godly; and that faith can too easily provide a pretext for terrible crimes.

Assessing Former U.S. Senator Rick Santorum as a 2012 Presidential Candidate: Part Two in an Ongoing Series on the Likely Candidates and Their Views on Religion

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Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns on the 2012 presidential candidates’ views on religion, with an analysis of the views of Rick Santorum, a former U.S. Senator from Pennsylvania. Hamilton critiques Santorum for failing to respect the Constitution’s separation of church and state, and for expressing support for states’ rights while also endorsing federal legislation that would displace state power, when it comes to certain policies he favors.

Assessing Texas Governor Rick Perry as a 2012 Presidential Candidate: Part One in an Ongoing Series on the Likely Candidates and Their Views on Religion

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Justia columnist and Cardozo law professor Marci Hamilton begins her series on likely 2012 presidential candidates and their views on religion. Here, Hamilton assesses the views of Texas Governor Rick Perry. She expresses concern, in particular, with Perry’s lack of belief in the separation of church and state, as exemplified by his speeches; finds in Perry’s record a belief that religion should drive politics; and questions Perry’s claimed beliefs in small government and in federalism.

All Roads Lead to Accountability

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Justia columnist and Cardozo law professor Marci A. Hamilton urges that the Catholic Church urgently needs to take responsibility—and foster an ethic of accountability—regarding clergy child-sex-abuse cases. In describing the path that she argues the Church must take, Hamilton compliments a recent speech by Irish Prime Minister Enda Kenny, and a book by Jason Berry on money and the Church. As she explains, these writings, too, call for responsibility and accountability from the Church, and for the enforcement of civil law by the courts, in clergy child-sex-abuse cases.

Sister Wives: An Illustration of Why Polygamy Is, and Should Be, Illegal

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Justia columnist and Cardozo law professor Marci Hamilton comments on the reality television show Sister Wives and the litigation that is connected to it. The family depicted on Sister Wives—consisting of one man, four “wives,” and 16 children—fled Utah to avoid potential bigamy charges. (Nevada’s bigamy law defines the offense in a less restrictive way than Utah’s does.) Now, the family’s lawyer, Jonathan Turley, is challenging Utah’s law as unconstitutional. Hamilton contends, to the contrary, that the law is perfectly constitutional, and explains the history of the law and the related precedent in support of her argument.

Caylee’s Law and What We Really Need to Do Now to Better Protect Children: Three Proposed Legal Reforms

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Justia columnist and Cardozo law professor Marci Hamilton comments on some of the lessons of the Casey Anthony trial, regarding protecting children. Hamilton begins by agreeing with calls for a law imposing strict punishment upon parents whose children go missing, but who never, or belatedly, tell the authorities their children are gone. She then goes on to suggest other reforms: a RICO amendment to sweep in child sex abuse, the institution of mandatory sex-abuse education within the sex education curriculum in schools, and the abolition of statutes of limitations for child sex abuse.

Hawaii’s Battle Over Its Statutes of Limitations for Child Sex Abuse: Why the Legislature Was Right to Unanimously Vote for Reform, and Why the Governor Should Not Fulfill His Veto Threat

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Justia columnist and Cardozo law professor Marci Hamilton comments on the situation unfolding in Hawaii with respect to the state's laws regarding statute of limitations for child sex abuse. As she explains, Hawaii's House and Senate each unanimously passed a bill that would create a two-year-long window of opportunity for child sex-abuse victims to file civil claims against their abusers, and against those who aided the abusers, even if the former statute of limitations had previously expired; and that would eliminate civil statutes of limitations entirely. But Hamilton – who has worked on the legislation with Sen. Maile Shimabukuro, abuse survivors, and others over the past year – notes that Hawaii governor Neil Abercrombie has issued a statement indicating that he will veto the bill. Hamilton takes strong issue with his reasons for doing so, and contends that he should change his mind.